The President’s mention of the Paycheck Fairness Act (the “Act”) during the 2013 State of the Union address sent me searching for information on the proposed legislation. While I first thought I could turn to wikipedia, the article on topic is being used as someone’s political football (a flurry of edits can be seen right after the Act was mentioned in SOTU). The wikipedia article incorrectly notes that the Act has been “twice rejected” by Congress. Of course, that’s not entirely correct, as it was filibustered in 2012, preventing an up-or-down vote. Click here for Arianna’s take, and here for the full text of the Act.
By clarifying the employer’s potential “factor other than sex” defense in gender-wage discrimination cases, the Act takes good steps toward eliminating the sort of pretextual defenses that are sometimes asserted to mask discriminatory employer conduct. This concept of looking beyond the mere facial rationale for differential treatment is well-established in other arenas of employer discrimination litigation, such as religious or racial discrimination in the workplace. Studies show that the wage-gender gap in the U.S. starts early. The Paycheck Fairness Act, if enacted, should help address the injustice which occurs when that disparity is replicated and the resulting gap is–pretextually or otherwise–defended on the supposed “factor other than sex” rationale.